The Incompetence Paradox

10 February 2017

This is all about an incident. One that I’ve read about before, but which last week was finally legally resolved. Now, I’m working from media reports rather than court notes so—caveat emptor—there’s a risk I’m dealing with inaccurate information, but… well, given the CPS’s keenness to pursue a charge of dangerous driving in the absence of serious injury, I’m going to infer that even if there are minor inaccuracies then this was nonetheless a case of truly appalling driving.

The incident involved Julian Harper, who was cycling, and Miriam Thomas, who was driving behind him. It took place on a country lane in Devon and resulted in a collision, with Harper sustaining minor injuries.

Thomas was charged with dangerous driving, but pleaded guilty only to the lesser charge of careless driving. However, the CPS decided to prosecute for the higher charge, and Thomas appeared at Exeter Crown Court in October 2016 and again in February 2017 after the jury in the first trial failed to reach a verdict.

The collision is recorded as having occurred slightly downhill of the disused railway bridge in Bolham, Devon, and given the description of preceding events (which we will see below) it seems reasonable to infer that Harper and Thomas were heading west, having come down Bolham Lane into Bolham itself. The lane is narrow and runs downhill, with thick hedgerows limiting visibilty, and given these characteristics it appears to be the sort of road where an amateur racing cyclist could easily reach a speed which would be considered a prudent maximum for any vehicle: bicycle or car, it is the width of the carriageway and the restricted visibility which should likely be the limiting factors, not horsepower.

So, what actually happened?

Harper’s version of events, as stated by the prosecution at the first trial, was reportedly thus:

[Thomas] beeped her horn repeatedly. Mr Harper looked behind him and saw her car very, very close—perhaps just one or two metres. It is a narrow country lane with high Devon hedges and blind corners which had nowhere the driver could have passed him. As they approached a left hand bend he looked down and saw the front bumper immediately by his right leg. [Thomas] did not stop or back off. [She] drove on and collided with the back of the bicycle, causing [Harper] to fall over.

Harper luckily escaped serious injury:

He initially fell to the left but was spun back round clockwise and as a result his front wheel went fully under the front wheel of the car. Mr Harper put his hands out to break his fall and the car ran over his fingers. The bike was rather mangled. Mr Harper was rolled along the road and eventually came to a stop.

Thomas continued on her way, returning shortly afterwards:

He looked up to see Thomas’s car disappearing round the bend without braking or stopping. While he was checking himself and his bike the car returned and she got out.

According to one report,

Thomas said she was on her way to a village post office to drop off her mother’s Christmas cards when her Renault car hit amateur bike racer Julian Harper.

Curiously, there appears to be no “village post office” in the area: according to Royal Mail’s information, the only nearby post offices are in the town of Tiverton. There is, however, a village post box in Bolham, so maybe some detail has been misreported (other reports simply state that Thomas was “on her way to post Christmas cards”).

Interestingly, the Bolham post box is just round the corner immediately after the recorded collision location; in fact it is a mere 160ft (50m) beyond it. It’s hard not to wonder whether Thomas may have simply carried on to this potential destination, posted the cards and turned for home, inevitably passing Harper on her return journey.

The prosecution again:

She said something like, ‘What were you doing swerving all over the road? You were in my way. Don’t you have mirrors?’

Thomas reportedly left the scene again but then came across three police cars. What happened next is the sole heart-warming part of the story.

[Thomas] said she had asked the police about whether the rider had been breath tested and their response was to breathalyse her.

Thomas’s version of events unsurprisingly differs to Harper’s.

She said she had only beeped twice to let the bicyclist know she was there and had not driven too close to him deliberately.

The thing is, of course, that if you’re not demanding to be allowed to overtake then there is absolutely no need to beep to announce your presence—none whatsoever. Just stay a safe distance behind; then the person ahead doesn’t even need to know you’re there. (And, anyway, even if you are demanding that someone get out of your way, what if they’re deaf?)

She continues,

The cyclist proceeded down the lane. It was obvious he was taking the racing line and trying to straighten out the corners.

Maybe I’m inferring too much from this, but it seems that the driver of a vehicle that permanently occupies the full width of the lane is somewhat disapproving of someone else using the full width of the lane. Still, “the racing line” is a helpful phrase in the context of Thomas’s defence: it conveys a certain image.

Somehow I got too close to him and the side of my car hit the back of his bicycle. I did not think I was that close. I was shocked and surprised. I lost sight of him and the bicycle because he fell over.

“Somehow”…?

Thomas’s argument here is, essentially, that she is manifestly incompetent: she states that she does not know how her car came to be close to Harper’s bicycle, and she also states that in any case she was unable to judge the distance between them. The extent of these failings was, by her own admission, so significant as to cause her to be “shocked and surprised”.

Thomas states clearly that she was aware that he had hit Harper and that he fell. She knew that there had been a collision and a likely injury, but she chose not to stop.

As far as I can discern, Thomas was not charged with the very straightforward offence of failing to stop at the scene of a collision. Judge Erik Salomonsen even appeared to praise Thomas for leaving the scene and coming back, saying,

It is clear to me you turned around as soon as you could afterwards and returned to the scene.

The phrase “stop at the scene of a collision”, as is a driver’s legal obligation, means just that: stop. It does not mean carry on round the corner and then come back some time afterwards to remonstrate with whomever you’ve just driven over—regardless of whether around that corner there happens to be a post box into which some Christmas cards would fit very neatly.

Thomas continues to make curious statements,

I was going very slowly. I must have been closer to him than I thought I was.

“Very slowly”…? It seems odd, then, that Thomas manages to catch, draw alongside, and collide with Harper, whose speed is such that he is using “the racing line”.

Describing the events following the collision, Thomas states,

I was aware he was shouting but it did not seem to me he was screaming or in a lot of pain. I don’t know why I carried on but as soon as I realised what I had done I turned around and came back.

I don’t know why, either. It’s hard to figure out why someone simply carries on when they’ve honked their horn at someone, attempted to pass them, collided with them, seen them fall, and then heard them yell out. I mean, obviously one hypothetical possibility is not giving the slightest toss about other people, and another is being in a rush to catch a rural postal collection on the day before the last Christmas posting day for second-class mail. But beyond those two hypotheses, yes, it’s hard to disagree with Thomas’s view that it’s something of a puzzler.

She denied hooting aggressively or trying to pass him on the narrow country lane.

So, she didn’t try to pass him. I mean, obviously she did pass him, sending him to the ground in the process: that seems to have been established as fact. But it was not her intention, apparently. Hence it was something that just happened against her will, something presumably beyond her control.

It’s a spectacular declaration of incompetence.

Thomas has stated that she cannot judge distances, that she cannot understand how she came to be close to Harper, and that she found herself alongside him against her own will as a driver. As far as proclaiming one’s own inability to control a vehicle goes, it’s quite the eyebrow-raiser.

Yet this was her defence. Her defence was her own self-alleged incompetence.

This might make sense in the context of an assault charge, where the prosecution would have had to prove Thomas’s aggression. (From the reported events—the use of the horn, the barging past on a narrow carriageway, the failure to stop, and what the judge described as Thomas’s “abrupt manner” on returning to the scene—this would not seem an unreasonable charge, but it’s probably a tough one to adequately prove.) But this charge wasn’t one of assault. This charge was one which required proof of a low standard of driving.

Thomas’s defence was, by definition, an attempt to demonstrate at least one of two points: that her standard of driving was not “far below what would be expected of a competent and careful driver”, or that it was not obvious to such a driver that this standard of driving would be dangerous.

The jury found Thomas not guilty of dangerous driving.

The jury’s opinion, therefore, was clearly that these criteria—the low standard of driving and the obviousness of it—were not met given Thomas’s claims of her failure to judge distance, her failure to understand how her vehicle could have ended up in the position it did, her failure to prevent her vehicle from coming alongside another despite her intention for it not to do so, and her failure to stop at the scene of a collision.

None of these claims of incompetence were, it would appear, made by the prosecution. It seems apparent that the prosecution’s case was that Thomas was, by various means, aggressively pressuring Harper into allowing her to pass, and forcing her way through when he did not. The claims of incompetence were made in defence. The strategy was to demonstrate total incompetence; to portray a sequence of events over which Thomas had little or no control.

And it worked. Why? Quite possibly because, whilst it is obvious to most drivers that deliberate aggression and assault with a car is far below the standard of a competent and careful driver, the same is not true of a swathe of errors of judgement and a generally thoughtless and disinterested attitude to every aspect of driving. And many argue that this is because, to a greater or (hopefully) lesser extent, most jurors behave in similar ways.

A claimed level of incompetence of this extent is, evidently, an absurdly paradoxical means of arguing that one’s driving is not actually all that bad. A means which is made possible by the loose, qualitative way in which the pertinent sections of the Road Traffic Act are written. Most people like to think of themselves as careful and competent, and thus everyone becomes their own legal yardstick.

What sort of legal system accepts incompetence behind the wheel of a car as a means by which to show oneself not to have driven dangerously?

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Comments

It’d be interesting to know what the prosecutors closing remarks were. I’d like to think he made the same deductions as you and pointed out to the jury that you can’t beat a charge of incompetence by pleading incompetence.

Sadly, from hearing my journalist (court reporter) teammate’s accounts of umpteen trials, the norm is for some junior prosecutor to be given the case mere hours before the hearing and to have no time to go through the thought processes necessary. And that’s if they’re even capable of such thoughts – what seems obvious to us cyclists comes as a revelation when explained to non-cyclists, which the prosecutor invariably is.

I think you are right in assuming that many drivers and hence many jurors think it is perfectly normal to “drive” a motor vehicle weighing 2000kg in semi-comatose mental state. If you wish to have the jury feel sorry for you, then the “comatose” defence is indeed a great one. This is why trying such offences should not involve a jury as they have built in bias and sympathy for the accused.

This is fascinating. I wonder if the jury based their verdict on their bias towards risk. Cycling is seen as an intrinsically risky activity by the general population, therefore part of the blame is laid on the rider for simply being on the road.

An example of this is on another forum where it was being argued that parents cycling using kid seats to do the school run should be banned or even prosecuted for endangering their children.

I wonder, in the USA, where the DA can veto jury members, whether they make any effort to deselect motorists from car crime juries.
I can’t think of any other crime where the jury is certain to be composed of people empathetic with the perpetrator and antipathetic to the victim.

In many jurisdictions, potential jurors can be challenged for cause (potential juror is wearing gang paraphernalia at a gang trial) and the defence can challenge a certain number of potential jurors without cause.

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Bez, “Thomas states clearly that she was aware that **he** had hit Harper and that he fell. She knew that there had been a collision and a likely injury, but she chose not to stop.” – should “he” read “she”?